Notice of motion is the equivalent to the Application Notice when instituting contempt of court proceedings under the English Civil Procedure Rules.

Clerk, Nairobi City County Assembly v Speaker, Nairobi City County Assembly & another; Orange Democratic Party & 4 others (Interested Parties) [2019] eKLR

Petition 194 of 2018

Employment and Labour Relations Court

at Nairobi

O N. Makau, J

December 20, 2019

Reported by Mathenge Mukundi

Civil Practice and Procedure – contempt of  court – contempt of court proceedings – orders and judgment of the court - whether the court ought to be moved under the English Civil Procedure Rules following the Contempt of Court Act being declared unconstitutional – whether it was mandatory for an applicant to serve or enjoin the attorney general in the purported contempt of court proceedings and give the 7-day notice to the respondents – whether notice of motion was the equivalent to application notice when instituting contempt of court proceedings under the English Civil Procedure Rules – English Civil Procedure Rules, part 81

Brief facts

On November 11, 2019, the petitioner filed a notice of motion seeking inter alia to cite the 1^st respondent for contempt of the consent orders issued on October 30, 2019 and served it on the respondents through their respective counsel. In response, the 1^st respondent filed a notice of preliminary objection November 12, 2019 objecting to the said motion.

Issues

1. Whether a Notice of Motion was the equivalent to application notice when instituting contempt of court proceedings under the English Civil Procedure Rules.
2. Whether it was mandatory for an applicant to serve or enjoin the Attorney General in contempt of court proceedings and give the 7-day notice to the respondents.
3. Whether the objection met the threshold for a preliminary objection.

Relevant provisions of the law.

Judicature Act

Section 5

The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of justice in England, and that power shall extend to upholding the authority and dignity of the subordinate courts.

Civil Procedure Rules 2010

Order 51 rule 10

(1) Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.

 (2). No application shall be defeated on technicality or for want of form that does not affect the substance of the application.

English Civil Procedure (Amendment No. 2) Rules 2012

Rules 81

“(1) A committal application is made by an application notice under Part 23 in the proceedings in which the judgment or the order was made or the undertaking was given.

 (2) where the committal application is made against a person who is not an existing party to the proceedings, it is made against that person by an application notice under Part 23.

 (3) the application notice must–

 (a) set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged acts of contempt; and

 (b) be supported by one or more affidavits containing all the evidence relied upon.

 (4) subject to paragraph (5), the application notice and the evidence in support must be served on the respondent.

 (5) the court may-

 (a) dispense with service under paragraph (4) if it considers it just to do so; or

(b) make an order in respect of service by alternative method or at an alternative place.

Held

1. A preliminary objection consisted of a point of law which had been pleaded, or which arose by clear implication out of pleadings, and which if argued as a preliminary point could dispose of the suit. Ground 1,2 and 3 of the objection were pure points of law which were capable of disposing of the impugned application in limine if successfully argued. However, ground 4 and 5 of the objection went to the merits of the application for committal and obviously required evidence to prove the same.
2. After the nullification of the Contempt of Court Act, the court reverted to section 5 of the Judicature Act as the law under which to punish for contempt of court. Courts had unanimously agreed that the foregoing provision put an obligation on the litigants, their lawyers and the courts to verify the prevailing procedure for instituting contempt proceedings in the High Court of Justice in England when dealing with such applications.
3. The Court of Appeal held that, by dint of section 5 of the Judicature Act, the procedure of instituting contempt of court proceedings in Kenya was set out in part 81 of the Civil Procedure of the UK which entirely replaced order 52 of the Rules of the Supreme Court England (RSC) through the Civil Procedure (Amendment No.2) Rules of 2012. The repealing of order 52 brought certain changes in the procedure for bringing contempt applications which were relevant to the objection.
4. The first ground of the objection by the 1^st respondent was that the application was incompetent because under part 81.4 of the English Civil Procedure Rules, the petitioner ought to have filed an application notice and not a notice of motion to institute contempt proceedings. However, the petitioner and the 3^rd interested party submitted that in Kenyan civil procedure, application notice was unknown and urged that the foreign law should be applied with modification to suit the local circumstances. They submitted that article 159 of the Constitution required that the court should administer justice without undue regard to procedural technicalities.
5. An application notice was defined under rule 23.1 of the English Civil Procedure Rules as a document in which the applicant stated his intention to seek a court order. In view of the description given under part 81.10(3) an application notice in England was the equivalent of notice of motion in Kenya. Under both Civil Procedure Rules, 2010 and the Employment and Labour Relations Court (Procedure) Rules, 2016, the recognized form of applying any order was basically a notice of motion, which could be supported by an affidavit or affidavits if evidence was required to support to it. Other forms like chamber summons were only used where there was a specific provision like application for leave to apply for judicial review orders under order 53 of the Civil Procedure Rules. The same position obtained in the Court of Appeal and the Supreme Court whenever a person intended to move the courts for any orders.
6. The description of a notice of application was that the application notice had to set out in full the grounds on which the committal application was made and had to identify, separately and numerically, each   alleged acts of contempt; and be supported by one or more affidavits containing all the evidence relied upon.
7. The court had to choose between whether to stop at the traffic red light of procedural technicalities, or walk down the path of substantive justice by interpreting the English Rules of Procedure through the lenses of article 159 of the Constitution and the law as requested by the applicant.  Courts existed to do justice and as such, the court would take the latter option of substantive justice as opposed to procedural technicality since there was no demonstrable prejudice. Foreign law, even where it was expressly imported, ought to be applied with the necessary modification to suit the local circumstances including the known forms used in invoking the relevant jurisdiction of court.
8. There was no offence to the law, no deficiency in the content or any prejudice occasioned to the respondents by the use of notice of motion as opposed to application notice. It had not been demonstrated that the use of notice of motion as opposed to application notice as the form of bringing the application affected the substance of the application.
9. The objection by the 1^st respondent was mainly the form used to approach court for contempt proceedings as opposed to substantive law regarding the power of the court to punish for contempt of court to uphold its authority and dignity. It was in order for contempt proceedings to be made by a notice of motion in Kenya, like in the instant case because it had the same form and substance as an application notice in England.
10. The application for contempt had to be served upon the Attorney General who was the equivalent of the crown office. The basis for serving the application on the Attorney General was because a person’s liberty was at stake. The amendment to the English Civil Procedure Rules introduced far reaching consequences by repealing order 52 including abolition of the requirement of leave before bringing committal proceedings related to a breach of judgment or order made or an undertaking given. Accordingly, the requirement that the crown office be served with a notice of the application for leave at least one day before moving the court was abolished therefore not applicable.
11. There was no provision as section 28 (1) (g) of the Employment and Labour Relations Court Act and as such the application before the court was fatally incompetent. Section 28 of the ELRC Act was non-existent because it was repealed by Act No. 18 of 2014. It was an error for the petitioner to base his application on a repealed section of the law.
12. However, the application was not fatally incompetent because it had invoked section 5 (1) of the Judicature Act which was the main provision relating to contempt proceedings. Under article 159 of the Constitution the court was to exercise its judicial authority without undue regard to technicality. Order 51 rule 10 of the Civil Procedure Rules which provided the policy in cases the court was faced with an application which had not cited the correct law upon which it was brought or which failed to cite any provision at all.

Preliminary objection dismissed.

           Orders:-

1. The contempt of court proceedings to be heard on priority basis.
2. The respondents to comply with the consent orders which reinstated the petitioner as the Clerk, Nairobi City County Assembly pending hearing and determination.

Notice of motion is the equivalent to the Application Notice when instituting contempt of court proceedings under the English Civil Procedure Rules.

Clerk, Nairobi City County Assembly v Speaker, Nairobi City County Assembly & another; Orange Democratic Party & 4 others (Interested Parties) [2019] eKLR

Petition 194 of 2018

Employment and Labour Relations Court

at Nairobi

O N. Makau, J

December 20, 2019

Reported by Mathenge Mukundi

Civil Practice and Procedure – contempt of  court – contempt of court proceedings – orders and judgment of the court - whether the court ought to be moved under the English Civil Procedure Rules following the Contempt of Court Act being declared unconstitutional – whether it was mandatory for an applicant to serve or enjoin the attorney general in the purported contempt of court proceedings and give the 7-day notice to the respondents – whether notice of motion was the equivalent to application notice when instituting contempt of court proceedings under the English Civil Procedure Rules – English Civil Procedure Rules, part 81

Brief facts

On November 11, 2019, the petitioner filed a notice of motion seeking inter alia to cite the 1^st respondent for contempt of the consent orders issued on October 30, 2019 and served it on the respondents through their respective counsel. In response, the 1^st respondent filed a notice of preliminary objection November 12, 2019 objecting to the said motion.

Issues

1. Whether a Notice of Motion was the equivalent to application notice when instituting contempt of court proceedings under the English Civil Procedure Rules.
2. Whether it was mandatory for an applicant to serve or enjoin the Attorney General in contempt of court proceedings and give the 7-day notice to the respondents.
3. Whether the objection met the threshold for a preliminary objection.

Relevant provisions of the law.

Judicature Act

Section 5

The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of justice in England, and that power shall extend to upholding the authority and dignity of the subordinate courts.

Civil Procedure Rules 2010

Order 51 rule 10

(1) Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.

 (2). No application shall be defeated on technicality or for want of form that does not affect the substance of the application.

English Civil Procedure (Amendment No. 2) Rules 2012

Rules 81

“(1) A committal application is made by an application notice under Part 23 in the proceedings in which the judgment or the order was made or the undertaking was given.

 (2) where the committal application is made against a person who is not an existing party to the proceedings, it is made against that person by an application notice under Part 23.

 (3) the application notice must–

 (a) set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged acts of contempt; and

 (b) be supported by one or more affidavits containing all the evidence relied upon.

 (4) subject to paragraph (5), the application notice and the evidence in support must be served on the respondent.

 (5) the court may-

 (a) dispense with service under paragraph (4) if it considers it just to do so; or

(b) make an order in respect of service by alternative method or at an alternative place.

Held

1. A preliminary objection consisted of a point of law which had been pleaded, or which arose by clear implication out of pleadings, and which if argued as a preliminary point could dispose of the suit. Ground 1,2 and 3 of the objection were pure points of law which were capable of disposing of the impugned application in limine if successfully argued. However, ground 4 and 5 of the objection went to the merits of the application for committal and obviously required evidence to prove the same.
2. After the nullification of the Contempt of Court Act, the court reverted to section 5 of the Judicature Act as the law under which to punish for contempt of court. Courts had unanimously agreed that the foregoing provision put an obligation on the litigants, their lawyers and the courts to verify the prevailing procedure for instituting contempt proceedings in the High Court of Justice in England when dealing with such applications.
3. The Court of Appeal held that, by dint of section 5 of the Judicature Act, the procedure of instituting contempt of court proceedings in Kenya was set out in part 81 of the Civil Procedure of the UK which entirely replaced order 52 of the Rules of the Supreme Court England (RSC) through the Civil Procedure (Amendment No.2) Rules of 2012. The repealing of order 52 brought certain changes in the procedure for bringing contempt applications which were relevant to the objection.
4. The first ground of the objection by the 1^st respondent was that the application was incompetent because under part 81.4 of the English Civil Procedure Rules, the petitioner ought to have filed an application notice and not a notice of motion to institute contempt proceedings. However, the petitioner and the 3^rd interested party submitted that in Kenyan civil procedure, application notice was unknown and urged that the foreign law should be applied with modification to suit the local circumstances. They submitted that article 159 of the Constitution required that the court should administer justice without undue regard to procedural technicalities.
5. An application notice was defined under rule 23.1 of the English Civil Procedure Rules as a document in which the applicant stated his intention to seek a court order. In view of the description given under part 81.10(3) an application notice in England was the equivalent of notice of motion in Kenya. Under both Civil Procedure Rules, 2010 and the Employment and Labour Relations Court (Procedure) Rules, 2016, the recognized form of applying any order was basically a notice of motion, which could be supported by an affidavit or affidavits if evidence was required to support to it. Other forms like chamber summons were only used where there was a specific provision like application for leave to apply for judicial review orders under order 53 of the Civil Procedure Rules. The same position obtained in the Court of Appeal and the Supreme Court whenever a person intended to move the courts for any orders.
6. The description of a notice of application was that the application notice had to set out in full the grounds on which the committal application was made and had to identify, separately and numerically, each   alleged acts of contempt; and be supported by one or more affidavits containing all the evidence relied upon.
7. The court had to choose between whether to stop at the traffic red light of procedural technicalities, or walk down the path of substantive justice by interpreting the English Rules of Procedure through the lenses of article 159 of the Constitution and the law as requested by the applicant.  Courts existed to do justice and as such, the court would take the latter option of substantive justice as opposed to procedural technicality since there was no demonstrable prejudice. Foreign law, even where it was expressly imported, ought to be applied with the necessary modification to suit the local circumstances including the known forms used in invoking the relevant jurisdiction of court.
8. There was no offence to the law, no deficiency in the content or any prejudice occasioned to the respondents by the use of notice of motion as opposed to application notice. It had not been demonstrated that the use of notice of motion as opposed to application notice as the form of bringing the application affected the substance of the application.
9. The objection by the 1^st respondent was mainly the form used to approach court for contempt proceedings as opposed to substantive law regarding the power of the court to punish for contempt of court to uphold its authority and dignity. It was in order for contempt proceedings to be made by a notice of motion in Kenya, like in the instant case because it had the same form and substance as an application notice in England.
10. The application for contempt had to be served upon the Attorney General who was the equivalent of the crown office. The basis for serving the application on the Attorney General was because a person’s liberty was at stake. The amendment to the English Civil Procedure Rules introduced far reaching consequences by repealing order 52 including abolition of the requirement of leave before bringing committal proceedings related to a breach of judgment or order made or an undertaking given. Accordingly, the requirement that the crown office be served with a notice of the application for leave at least one day before moving the court was abolished therefore not applicable.
11. There was no provision as section 28 (1) (g) of the Employment and Labour Relations Court Act and as such the application before the court was fatally incompetent. Section 28 of the ELRC Act was non-existent because it was repealed by Act No. 18 of 2014. It was an error for the petitioner to base his application on a repealed section of the law.
12. However, the application was not fatally incompetent because it had invoked section 5 (1) of the Judicature Act which was the main provision relating to contempt proceedings. Under article 159 of the Constitution the court was to exercise its judicial authority without undue regard to technicality. Order 51 rule 10 of the Civil Procedure Rules which provided the policy in cases the court was faced with an application which had not cited the correct law upon which it was brought or which failed to cite any provision at all.

Preliminary objection dismissed.

           Orders:-

1. The contempt of court proceedings to be heard on priority basis.
2. The respondents to comply with the consent orders which reinstated the petitioner as the Clerk, Nairobi City County Assembly pending hearing and determination.